Speechless: The Erosion of Free Speech in the American Workplace

Guest Author - Tracey-Kay Caldwell

Bruce Barry, professor of management and sociology at Vanderbilt University, write in his new book, Speechless: The Erosion of Free Speech in the American Workplace, that, “Many Americans would probably be alarmed to discover that many employers can, if they wish, regulate their employees’ private political activity.” Barry examines in his book the limits of speech in the workplace, how individuals, employers, and civil society would benefit from less restriction on speech.

One of the first things Barry reminds us of, is that the first amendment and the rest of the Bill of Rights, safeguards the powerless from the powerful in public life, and not from the powerful in private life. It protects us from our government, not from our employers. Barry identifies six elements that relate to workplace related expressive activity. One, location, when speech occurs on the physical site of the employer’s workplace. Two, time, whether the speech occurs during or after the workday. Three, topic, whether the speech is about the organization or about the greater world. Four, audience, whether the speech is aimed at listeners inside the organization, or listeners who are not co-employed. Five, compelled speech, whether the speech is freely given by the employee or compelled by the employer. Six, association, joining groups your employer may or may not approve of. Barry explains that now is the right time to look at free expression in the workplace for five reasons. First, “Fearing the consequences, employees develop survival instincts that make them more inclined to curry favor than to speak out about management or corporate practices.” Second, the drop in unionization of workers results in workers being unable to expect due-process protections. Third, the increase in political partnerships by corporations. Fourth, the compelling of employees to avoid words or deeds on or off the job that can undermine brand equity of the corporation. And Fifth, the advent of new technology that makes it possible for employees to reach a much larger audience.

Barry examines the roll of state action in free speech. State action limits the reach of the U.S. Constitution, extending its rights and privileges to situations that involve the government. Many of the legal case surrounding free speech have dealt with the issue of whether the speech is being limited by a private employer or the government. Barry warns that, “With governments increasingly privatizing services or managing them through public-private partnerships the reach of the constitutional rights in the workplace is riding on these legal judgments—on whether an employer is or isn’t a state actor.” The protections granted under the Bill of Rights originally applied to the federal government only. But the Fourteenth Amendment extended those protection to protect us from state governments as well. In 1875 the Congress attempted to extend those protection to the private sector as well with the Act to Protect All Citizens in Their Civil and Legal Rights, however the Supreme Court overturned the law stating that the Constitution isn’t supposed to stop any and all actions or infringements on ones rights, only those by the state. In order to sue a private party for infringing on your free speech you must first proof they were acting as a state actor. There are two ways to achieve this, first demonstrate that the private party’s activity is sufficiently public in nature that the state assumes responsibility for it, this is known as the public function test. Second, demonstrate that the connection between the private party and the government are symbiotic or inseparable, this is known as the nexus test.

The legal concept of employment at will is what allows your employer to fire you for your speech. In 1884 the court develop what became known as “Wood’s rule” when it ruled that, “All may dismiss their employees at will, be they many or few, for good cause, for no cause, or even for cause morally wrong, without being thereby guilty of legal wrong…Trade is free; so is employment.” As the dissenting opinion in the case warned the decision would, “justify employers, at any rate allow them, to require employees to trade where they may demand, to vote as they may require, or to do anything not strictly criminal that the employer may dictate, or feel the wrath of employer by dismissal from service.” The United States is virtually alone among advanced nations in perpetuating an at-will scheme of employment; other countries have managed to require employers to demonstrate a just reason for terminating employment. Barry identifies three exceptions to the employment at will principle. The first exception is tied to categories of people or behaviors. This would include protections granted by the National Labor Relations Act to workers engaging in union activities. It also includes groups protected by Title VII of the Civil Rights Act of 1964--race, color, religion, sex, national origins; and the groups later added by congress based on age, illness, disability, and pregnancy status. Some states have added protection based on marital status and sexual orientation. The second category is implicit agreement exceptions. One exception to the employment at will is the implied contract. This exception applies when the employer has given concrete indications that certain policies and procedures will be followed in disciplinary and termination procedures. The second exception is the implied covenant of good faith and fair dealing. This exception is based on the principle that parties in an employment relationship are dealing with each other fairly, in good faith, and without malice. The third and most significant exception is the public policy exception. This exception “comes into play when people are fired for reasons that run counter to an explicit public policy of the state, as defined in statutes, administrative regulations, court decisions, or constitutional provisions.” This exception arose out of a California case in which an employee was instructed to give false testimony in an appearance before the state legislature. When the employee testified truthfully, he was terminated. The employee sued for wrongful termination and lost in the trial court but won on appeal. The appeal court ruled that the employer’s actions were “patently contrary to the public welfare,” and that state must strike down actions by employers that are contrary to the public policy of the state. One area of public policy exceptions that have received increasing protection under the law is wistleblowing, the reporting of wrongdoing by an employer. It may surprise the reader to know that the state with the most protect to employees is Montana with its Wrongful Discharge from Employment Act of 1987. It allows employees to sue for wrongful discharge if an employer does not have good cause for termination.

Public employees enjoy greater freedom of free speech than private sector employees do in part because, “Government Employees are uniquely positioned to understand and form opinions about often vital public services to community and society they help to deliver.”
However, in 1977 the Supreme Court placed a chilling limit on employee speech in a ruling that found, “A public employee fired for exercising free speech has to prove that it was the motivating factor; an employer can fight back by showing that even without the protected speech, the employee would have been fired anyways.” This opened the door for employers to contrive other grounds for terminating an employee when displeased with his protected speech. The courts have said that speech when it is a matter of public concern is protected. However, there are some troubling aspects to the public concerns test. First, it gives judges the power to decide what is and is not a matter of public concern. The constitution empowers the people, not anyone branch of government to define the public agenda. Second, it enables a class-bias to seep into the system. That, “Giving priority to speech on matters of public concern creates an inherent bias towards speakers who are educated, organized and know how to get their issues aired in the broader sphere of political discourse.” Third, it enables viewpoint discrimination by protecting speech of public concern and not other speech even when it poses no risk of workplace disruption.

While public employees have enjoyed far greater freedom of speech, the courts have found protection for private employer employees in two areas, Speech related to unionization and speech related to whistle blowing. The initial National Labor Relations Act of 1935 appeared to grant expansive expressive rights when related to collective bargaining. Overtime the rights have been whittled away and the board created by the act has become increasingly impotent. Whistle blowing laws usually require that external reporting of bad behavior be directed to an appropriate government body or agency and not to the press to a public interest group. In the wake of corporate scandals, congress passed the Sarbanes-Oxley Act (SOX). The SOX’s act protects employees who disclose information about fraudulent activities by private-sector companies that are publicly held. Workers in other countries have even greater protections. The International Labor Organization’s Convention 158, which states that employees should not be discharged unless there is a valid reason in connection with the employees actions or an operational requirement of the business, has been ratified by 34 nations. The International Labor Organization’s Convention 111, which cites political opinion, race, sex, religion, nationality and other individual characteristics as unacceptable bias for employment discrimination, has been ratified by 165 nations. The United States has ratified neither.

Barry divides free speech theory into two broad categories, collectivist, and individualist. Collectivist theories are based on the principle that free speech is important because of the contribution it makes to the effectiveness of liberal democracy. That free speech results in well-informed citizenry, which in turn produces better political outcomes and effective government. The individualist theory is based on the principle that speech is protected for its value to the individual. Barry employs Thomas Emerson’s theory to illuminate this position. Its four principles of why freedom of expression is essential are, first, to assure individual self fulfillment; second, to fulfill an individuals quest for knowledge and discovery of the truth; third, to exercise their right of consent having the full freedom in forming individual and common judgments; and fourth, to use reason in creating a community that has the twin virtues of being both stable and adaptable. Barry also employs C. Edwin Baker’s liberty theory to illuminate the restrictions on free expression. Baker would allow only three restraints, first, speech that involves the taking or injury to another person or property; second, coercive speech that disrespects and distorts integrity of someone else’s mental processes or autonomy; and third, speech compelled, that does not reflect the speaker’s own legitimate values.

More people have run afoul of restrictions on speech as a result of innovations of the digital age. First, because people have access both at work and off work to expanding opportunities to express themselves in regards to work and non-work matters. Second, with digital distribution people can easily reach wide audiences both inside and outside their place of employment. Third, these audiences inevitably include employers that are apprehensive about the flow of information they cannot control. Fourth, employers often overreact to harmless extracurricular employee speech as a hazardous obstacle to productivity and the firm’s success. Most often the person fired for his online speech will younger employees, who grew up in a world where intensely personal details are shared on line, and who often haven’t learned the value of discretion.

Barry notes that employees expression can pose a real threat to legitimate employer interests, but often free speech is limited not because of any legitimate fear but because American management culture is, “so dependent on predictability and control that even remote threats to the established order are treated with suspicion and dealt with harshly.” But Barry also notes that, “More freedom of expression for American workers does not mean turning workplace into debating societies or free-for-alls for hostility and harassment…Yes, free speech can be messy; a freer workplace for speech does compel employers to accept and tolerate more unpredictability, and even to sacrifice a bit of efficiency in the name of expressive freedom.” He concludes that, “Needless curbs on employee speech are more than just inconveniences for the individuals involved; they contribute to the debilitation of civil society and consensual democracy.” Barry makes a compelling argument for expanding speech rights in the workplace.